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Posted in Criminal on Saturday March 15 2014 @ 8:27am

The new New York Review of Books is in, and as usual there is so much to see. We are going to focus on the ads -- yes, the squillions of book ads, all of which look good but some of which may be particularly interesting to court-o-ramans:

This list is not exhaustive! Happy reading!

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The Five Percent

Posted in Criminal on Tuesday March 04 2014 @ 11:55am

What is cruel and unusual for the purposes of the Eighth Amendment? The U.S. Supreme Court held, in Atkins v. Virginia, that executing mentally retarded defendants amounted to cruel and unusual (again with capacity!), and was thus unconstitutional. What that decision left out, however, was what was meant by mentally retarded or intellectual disability.

States established criteria in their crazy patchwork way. As one can imagine, the results are not uniform. The Death Penalty Information Center (DPIC) compiled a state-by-state list of definitions.

Many states require a particular IQ -- usually around 70. But what about statistical deviation? IQ tests are only so accurate (and, some might argue, not very). Florida requires a 70. IQ is usually determined as a score, plus or minus 5. So, what of those plus-or-minus-5 group? One death row inmate in Florida is seeking reprieve due to his raw score of 71. See Supreme Court to Revisit IQ Rule in Death-Penalty Cases, Jess Bravin, Wall Street Journal (March 2, 2014). See also Hall v. Florida: Florida's Attempt to Limit Atkins' Constitutional Protection, John H. Blume, American Constitution Society (February 20, 2014).

See the SCOTUSblog resources on Hall v. Florida for more.

How could an outcome for Hall affect states in the future? See the DPIC's States That Have Changed Their Statutes to Comply With the Supreme Court's Decision in Atkins v. Virginia. If the Court finds for Hall, expect a similar update incorporating language and guidance from the opinion.

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Underage On All Counts

Posted in Juvenile on Sunday March 02 2014 @ 7:33am

Minors can't consent to sex -- the age varies from jurisdiction to jurisdiction, but it is usually 16 or so, sometimes with various qualifiers. See Age of Consent in North America, Wikipedia. Moreover, anyone under the age of 18 lacks capacity to contract. So how can a minor be prosecuted for doing a combination these things -- contracting to sell sex?

They are. Rather than services or housing or even -- gasp! -- sex ed, children picked up for prostitution are being prosecuted for a crime they cannot possibly have the capacity to commit. One court (at least) is taking another approach. See Courts Take A Kinder Look At Victims Of Child Sex Trafficking, NPR Staff (March 1, 2014). See also the wonderful policy resources provided by the Polaris Project: Sex Trafficking of Minors and Safe Harbor.

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We're 6 and We Know It

Posted in Hype on Tuesday December 31 2013 @ 9:21am

Six years ago we came up with the idea of As the courts are purportedly the least dangerous branch of government, so would this be the least dangerous blog. Sure, there were scores of legal blogs (blawgs), but almost none devoted to the courts themselves.

Six years ago it seemed like a crazy idea that just might work. My good times at the Jur-E Bulletin had come to a close. Although we branched out into new adventures, we always kept one foot in the court administration policy world.

Since then, we've brought you annual holidays such as Valentine's Day at probate courts around the country, and haunted Halloween courthouses. We continue to rail against both piss-poor research and bad ideas. To our great surprise, we grew readership beyond our starter Jur-E audience, and shot into the greater blawgosphere, meeting a bunch of interesting people along the way.

What's in our future? We plan to continue this blog, and we pray that people will keep reading and contributing. Whether we find ourselves discussing the rise of bitcoin, the extinction of the landline, or yet more traffic court basics, we promise to keep it real and fun.

In 2014, we wish all courts better funding, continued staff dedication (seriously, have you ever met some of these people? So committed!), and better public understanding. Happy birthday to us, and Happy New Year to you!

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Read All Over

Posted in Truth Is Stranger Than (Legal) Fiction! on Thursday December 05 2013 @ 6:34am

A few good reads --

  • So, you think you know what the Hobby Lobby case is all about? This is a case where everyone seems to have an opinion, although few are aware of the actual questions involved. The Volokh Conspiracy has a wonderful series about Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialty Store v. Sebelius: Hobby Lobby, the Employer Mandate, and Religious Exemptions Eugene Volokh, The Volokh Conspiracy (December 2, 2013). Links to the rest of the series are provided therein.

  • Volokh Conspiracy also cites a great local (to us) article about solo firm problems: Jim Hannah on Abandoned Practices of Dead or Disbarred Lawyers, Will Baude, The Volokh Conspiracy (December 2, 2013). We read it first, in an actual paper, but they beat us to the posting punch. Dear local paper: more like this, less like the other. Thank you!

  • The Unemployed Lawyer, ever deft, has a good explanation in the latest issue of Article 25: Courthouse Crap, Unemployed Lawyer, Article 25 (November 27, 2013). Yes, court staff ARE overburdened and underfunded, and the end is nowhere in sight. For some background, see Coalition Going to Court over Sheriff's Homeless Strategy, Ann Thompson, WVXU (October 15, 2013), and related stories (follow links from the WVXU story). Full disclosure: the sheriff in question is our sibling's boss, and he's a breath of fresh air in this county. We wish people would work WITH the new guy -- he seems to sincerely welcome it, and he has some good ideas.

  • Our apologies for thinking that the Ohio man mentioned in this story must be from Cleveland. No, he is from our very own Hamilton County. Sorry! See also Paper Terrorism, Prisoners, and Pro Se Mischief, David Giacalone, shlep: the Self-Help Law ExPress (December 16, 2006). We love being called well-footnoted!!!

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Posted in Civil on Thursday November 21 2013 @ 7:34am

Imagine you are in the E.R. of your local hospital. You have been examined, and there is no question that you are in need of urgent medical care. There are no insurance coverage or other payment issues barring proper treatment. Yet, you are discharged within hours because the hospital is unable to find you a bed. You go home and die the next day, as a direct result of your illness.

Sond crazy? Yes. Yet, this is a perfect description of how the Commonwealth of Virginia's mental health system does (or does not) work.

Why no beds? For one, there are not enough least restrictive alternatives available. Those who are civilly committed (i.e., are unable to care for themselves or who pose an immediate danger to themselves or others) meet the criteria for court-ordered treatment. From the moment of commitment, the individual must have a treatment and discharge plan. This plan must include keeping the person in the least restrictive alternative -- i.e., not necessarily a state mental hospital. But, because these less restrictive facilities such as group homes are small and rare, and have stricter standards (for example, a resident of a group home could be kicked out for being too disagreeable, or for stabbing someone's hand with a fork in the course of a dinner roll dispute), this type of placement is hard to come by. Likewise, a sensible transfer to a Veterans Administration hospital (a small wish if there ever was one) may be denied. Thus, individuals who might otherwise be in group homes, other hospitals, or day reporting centers end up hogging the more restrictive beds.

In 2005, Virginia had 8 state hospitals and 38 licensed hospitals available to provide adult psychiatric care. According to one report, In some localities, there are documented bed shortages and CSB [Community Services Board] staff report that at times, a TDO [Temporary Detention Order] is not issued for a person under an ECO [Emergency Custody Order] and he is released simply due to the lack of a bed. Virginia Civil Commitment Procedure and Practice: Policy Analysis and Recommendations to Increase Voluntary Admission, Brett M. Merfish (May 2010). See the Virginia statute addressing emergency custody (part J covers the issue of bed availability). For general information about the commitment process, see Eliminating Barriers to the Treatment of Mental Illness: Virginia. Northern Virginia, which is more heavily populated, has a stark imbalance of beds to patients. Thus, many are transferred to the less populous western part of the state.

Another reason, of course, is funding. See Are Cuts to Virginia's Mental Health Programs Implicated in Creigh Deeds' Son's Attempted Murder/Suicide? Matt Connolly, Mother Jones (November 20, 2013). Follow the money, or lack thereof!

Western Virginia counties are hilly and rocky and beautiful -- each Fall, tourists descend on the area to view the blazing colors. The people are some of the best you could hope to meet, with great community spirit, wonderful college towns, and a rich cultural heritage. Yet, it seems to be home to one avoidable tragedy after another -- two university shootings (one at a law school, one at a university), everyday mental health woes, and high-profile, completely preventable deaths such as the Deeds case. Whether because of its small population and remoteness, the rejection of government solutions, the poor quality of basic healthcare in Virginia's rural areas (we used to live in a county where the only healthcare facility was one small free clinic), or some combination thereof, Virginia has managed to create the perfect storm.

What's the definition of crazy? Doing the same thing over and over and expecting something other than the same bad result. By this definition, Virginia's mental health system is, well, crazy.

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Scary Decicis

Posted in Truth Is Stranger Than (Legal) Fiction! on Tuesday October 29 2013 @ 5:16am

It's almost Halloween, and that can mean only one thing. Well, two -- one, watch out for that neighbor with the horrendous candy. Two, the world-famous annual haunted courthouse post!

First off, Ohio! Yes, my fellow Ohioans contributed greatly to this year's post with a statewide tour. Gremlins, a Lady in Pink (Rizzo?), and mysterious flying paper clips all appear in Haunted Ohio Courthouses, Stephanie Beougher, CNO (October 28, 2013). For more about the Wooster weirdness, see Haunted Wooster Courthouse Home to Lady in Pink.

Meanwhile, across the river in Moundsville, West Virginia, one report asks: What Could Be Scarier Than a Paranormal Hot Dog Stand? John W. Miller, WSJ (October 27, 2013). This eerie weenie roast boasts the Archive of the Afterlife: A Paranormal Museum. It capitalizes on the much-haunted West Virginia State Penitentiary, among other creepy people, places and things. (Fun fact from the WSJ article: haunted houses in the US bring in $500 million annually.)

Out west, there's the Navajo County Courthouse in Arizona. See Tales Of The Unusual About At Old County Courthouse, Linda Kor, Arizona Journal (October 25, 2013). (Note to Arizona Journal: coats are hung, convicted criminals in the old west were hanged.) There, plywood cutouts have been known to fling themselves at workers, inexplicable footstep noises have been heard, and a nasty hair-pulling incident occurred during one tour.

Finally, should you find yourself at a haunted house this season, do not end up in a haunted or non-haunted courthouse as a criminal defendant. See: Assault, Disorderly Conduct at Portage Park Haunted House, Rachel Cromidas, redeye (October 21, 2013). Punching an off-duty officer will land you a trip to the actual Cook County Criminal Division.

Be safe, and have a fun Halloween!

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October Is Here!

Posted in Hype on Wednesday October 09 2013 @ 4:46am

October is here, and that means a new term for the Supreme Court of the United States (SCOTUS). We were lucky enough to attend a preview of the new term, led by Howard Tolley of UC Law.

Of the governmental branches, is the SCOTUS the most functional, least generous, least dangerous? Professor Tolley says maybe, but notes that it is definitely the least understood.

On that note, he gave the audience a pop quiz, reproduced in part below, with extra parts added by court-o-rama:

  • What is the usual win rate for the U.S. Solicitor General?

  • What was the win rate for the U.S. Solicitor General last term?

  • Which two Justices agreed most often last term?

  • What is the number of Jewish justices currently sitting on the high court?

  • What is the number of current Catholic justices?

  • What is the number of Protestant justices?

  • How many are women?

  • How many are age 73 or older?

  • how many are Democratic appointees?

  • What percent of petitions are accepted and scheduled for oral argument?

  • Last term, what percentage of cases were unanimous?

  • Recent research found how many instances of humor (We deemed something as being humorous if it elicited laughter from the audience, justices or advocates) last term?

  • What percentage of humor did researchers find, but court reporters omit?

  • Who was the least humorous last term, according to this research (or, arguably, by any standard)?

  • Who was the most humorous?

  • According to this study, are conservative or liberal justices funnier?

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The Libertarian's Day in Court

Posted in Administration on Saturday September 21 2013 @ 6:28am

A recent article posed eleven questions to ask an obstinate Libertarian: 11 Questions to See If Libertarians Are Hypocrites, R.J. Eskow, Salon (September 12, 2013). We think only one question is necessary: Did you use a road to get here?

But this (plus Tom's facebook rants) got us thinking -- what would a privatized justice system look like? First, you'd have to imagine privatized law enforcement. That could run the gamut from mall cops to private bodyguards to hired thugs. If you didn't pay into some sort of protection system, you could not simply call government-sponsored police to help you.

But suppose you live in a safe place. Nothing dangerous ever happens to you. However, your business, unfettered as it is by government intervention, finds itself in crisis. Another person with whom you do business has failed to deliver. How do you enforce your contract?

And here, having seen the disastrous future from the crumbling present, you all wave your hands and shout out, Private arbitration! Hired judges! Mediators! You are all correct, of course. These tools are already at our disposal. Decades ago, the Trends Report from the National Center for State Courts predicted the slide into private justice. See, for example, 'Rent-a-Judges' Might Harm Court System, Lawyers Say: Judiciary, Bar officials warns of a trend that could lead to a 'private justice system' for the wealthy and place an added strain on the public legal structure, Ted Rohrlich, L.A. Times (November 1, 1989). Just a few months ago, these dire predictions came to fruition, as the SCOTUS declared that they are still more than OK with private arbitration. See (if you can stand yet another article claiming that a case that reached the SCOTUS to be little-known): The Supreme Court Just Made It Easier for Big Business to Screw the Little Guy", Stephanie Mencimer, Mother Jones (June 20, 2013).

So, that works for some. Could private dispute resolution help everyone, all the time? While we wait to find out, let's think about the courthouse itself.

Does that mean nothing should be privatized? Really, Taylor Swift, Not ever? No! But there are ways to go about it. A radical idea from the UK has sparked discussion. See, for starters: Courts May Be Privatised to Save Ministry of Justice 1bn, Ben Bryant, The Telegraph (May 28, 2013). Our favorite court technology guru, Jim McMillan, made these sane comments:

First, privatized justice already exists in nearly every country. It is called organized crime protection racketeering. So yes, privatization in that sense can be quite profitable.

But to be fair, the article seems to be saying that the focus will be on the services rather than the decision making (judge) side of our court business model. In the USA we have had the government lease-purchase financial model for some court buildings for quite awhile. It is a good safe investment model that provides bond-like funding without the political overhead of a bond election.

Regarding the record keeping side, E-filing/e-courts are certainly having an impact. But what is not said is that the public is woefully underserved by the lack of court staff. In other words, I very often cannot get anyone to answer the telephone at courts I call. So while it might look promising that the clerical staff could be privatized, the savings will be very minimal as these positions are low pay and hence high turnover (meaning training costs).

Last, a great cut/privatization could open the courts to corruption as is the cae in many countries where staff receive starvation wages. So fee for services corruption enters into the system and becomes normalized over time.

I remember that New Zealand's courts were reviewed in the early 90s as part of their overall government review. The result was that they didn't privatize anything...As they say, there are very few really new ideas.

So, it looks as though Libertarians, like everyone else, will be half-satisfied by their day in court.

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Common Good

Posted in Criminal on Thursday July 18 2013 @ 7:15am in no way resembles the popular notion of conservativism. But we like our old documents and rules, and we like them to be (to the extent modern times allow) all nice and preserved-like.

Are we mere Luddites, clinging to our Rolodexes and ink pens for the sake of tradition? Are we stuck in the past, with our Retro TV and our mood rings? (Come to think of it, Uncas did introduce one of us like this: This is Anna Skovee. She's from the 70's!)

No, there is something more to this. When we tamper with the Constitution or the common law, our entire system -- legal, governmental, societal -- breaks down. We have seen the demise of the civil jury here and (even moreso) in the UK. We have chipped away at the grand jury. And several states have spun the common law gold standard of self defense into straw, turning a useful and sane defense it an unrecognizable and very dangerous principle.

Was the common law so terrible that we felt the need to slice and dice it? We are all for reform when reform is due. We love innovation, and wish people would not fear it so. But we also live by the mantra If it ain't broke, don't fix it. The common law has been around since the Middle Ages. To it, we owe wonderful inventions such as juries, precedent, habeas corpus, and warrants. Conservatives and liberals alike should embrace the common law, as it protects individuals against the state, gives everybody a voice, and provides for basic freedoms. You can see its influence on the Magna Carta and the Declaration of Independence. Boalt Hall provides an excellent background history of common and civil law: The Common Law and Civil Law Traditions. Is this really something we want to abandon? Some might say yes. See The Death of the Common Law: Expiry Date, 2100, Duhaime's LawMag (October 14, 2009).

Can grand juries filter out bad cases? They have their little problems and may seem antiquated, but let's not throw the baby out with the bathwater. A good grand jury serves as a check on police and prosecutorial powers. See Skipping Grand Jury Bad Idea, Tom Luken, Cincinnati Enquirer (July 17, 2013). For perhaps more than you ever wanted to know on the topic, see the University of Dayton's excellent Federal Grand Jury and State Grand Jury websites.

Whither habeas corpus? As the Violent Femmes might say: gone, daddy, gone. See Graffiti Watch: Habeas Corpus, RIP, 1250-2006, Dean of Cincinnati, Cincinnati Beacon (October 10, 2006).

As for self defense -- sigh. We've already been over that. See De-fense!, (April 5, 2012). See also Notable Comments on Self-Defense Laws by Attorney General Eric Holder Sentencing Law and Policy (July 16, 2013).

What started this trend away from our common law roots? Are legislators without law degrees, an increasing phenomenon, to blame? Is the Tough on Crime crowd, who rose to power in the 1990s, part of the problem? Do we point fingers at our last and current president? Have law professors stopped relying on solid casebooks such as Moskovitz's wonderfully well-organized Cases and Problems in Criminal Law? Maybe all of the above. Guantanamo, Zimmerman, and your jury trial rights may be just the beginning of a very hard end.

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